Another Anti-Roberts Advertisement:
A new TV ad is out opposing John Roberts, available here. The voiceover makes the basic point:
  In 1991, John Roberts argued for public school-sponsored prayer at graduations, claiming that ceremonies shouldn't be considered mandatory. Do you believe in an America where Christian students in Dearborn could be forced to read from the Koran, Muslim students in Brooklyn could be forced to pray from the Torah, or Jewish students in Utah could be forced to recite Mormon prayers? Tell your Senators to make sure John Roberts's America doesn't become our America.
  The case at issue is Lee v. Weisman, which involved a nonsectarian prayer at a junior high school graduation. I think it's a bit of a stretch to say that Roberts "argued" for the prayer. Roberts was one of five lawyers whose name appeared on the government's amicus brief supporting the constitutionality of the prayer in that case. The case was argued for the U.S. by Ken Starr, not Roberts.

  More broadly, if you read the brief it's pretty clear that it does not endorse forcing students to read from the Koran, pray from the Torah, or recite Mormon prayers. To the contrary, the whole point of the brief was that coerciveness should be the test, and that the government should not be permitted to coerce students but should be permitted to invoke religion in some circumstances in noncoercive environments. The brief argued that permitting a nonsectarian prayer to be read at a ceremony like graduation was usually permissible because there was a basic distinction between coercive environments such as classrooms and noncoercive environments where the invocation of religion was likely to be only ceremonial. In the context of a graduation, the brief argued, the Establishment Clause was more forgiving and "as a general matter" permitted "ceremonial acknowledgments of religion in civic life" so long as they were non-coercive:
  The graduation setting at issue here differs markedly from the classroom setting. In the classroom, the school carries out an avowedly instructional mission, and school officials are the sole authority figures. Graduations, in contrast, are ceremonial affairs, and the parents themselves are present to act as a natural bulwark against risk of official coercion. Because graduations are designed not only for students but also for their families and friends, the graduation setting does not warrant an approach different from that applied in other ceremonial settings.
  I assume that defenders of the new ad will point out that, read literally, the advertisement does not directly say that Roberts would allow students to be forced to pray from the Torah, etc. My sense is that the ad is designed to leave that impression, though, and to the extent it leaves that impression it seems to me a pretty false one.

  Hat tip: Dave Hoffman.
Daniel Chapman (mail):
"Robert Bork's America" worked, didn't it?
8.30.2005 4:25pm
SimonD (mail):
Presumably, these liberal groups believe that, if they could only stop John Roberts, Bush will nominate Lawrence Tribe to the Supreme Court? If not, this is a meaningless (and utterly duplicitous) exercise in boosting their enervated membership and funds.

Bush promised another Scalia or Thomas. He did not deliver, and if the left would stop bleating for thirty seconds, they'd realize that Roberts is the best they're getting. Elections have consequences. Clinton won in '92 (without a popular majority, gasp!), so he got to nominate Ginsburg and Breyer. Bush won in 2000 (without a popular majority, gasp!) and 2004 (with a popular majority, gasp!), so oddly enough, the nominee is not going to be the second coming of Bill Brennan.
8.30.2005 4:44pm
Nick Carter (mail):
I would have hoped that the writers of the add had done some research into prayers. Being Mormon, I see no difference in our prayers than the majority of other prayers.
8.30.2005 5:08pm
Attila (Pillage Idiot) (mail) (www):
In Weisman, a Jewish student sued when a rabbi gave a nonsectarian invocation, ostensibly on the theory that this was an establishment of Judaism. Only in America!
8.30.2005 5:14pm
Carl Sanders (mail):
This is some pretty great non-literal advertising. They are not claiming that Roberts' position was that kids should be forced to pray. They are just connecting totally random sentences about vaguely related issues, not sliming someone whom they can't find any real ammo on!
8.30.2005 5:15pm
I guess no one is allowed to believe that "noncoercive" prayer will incrementally lead to more significant establishments of religion. I guess if a brief says "we only want to go this far, and no further," no one is allowed to think that the authors might subsequently seek to go further if they get their way.

I don't get when it became libelous to make a slippery slope argument.
8.30.2005 5:25pm
Gordon (mail):
Unlike the abortion issue, this is one where Roberts would make a difference. Compare his probable viewpoint on the establishment clause of the First Amendment with that of Justice O'Connor, which was nuanced but which took a decidedly secular tone with her votes on the two Ten Commandments cases this term. Her stirring words asking why we would follow a path of allowing religion into government when that path has so dismally failed elsewhere in the world (words that Professor Volokh criticized heavily at the time) resonated strongly with me. I doubt that Roberts feels the same way.

Nonetheless, it's no reason to not confirm him.
8.30.2005 5:39pm
noahp (mail) (www):
The argument of the last poster is like me saying, "So-and-so supported the decision in Roe v. Wade. Do you believe in an America where evangelical Christian doctors are forced to perform abortions in military hospitals?" (That is, if the SC had decided that abortions must receive taxpayer funding [[see Harris v. McRae]]). The "slippery slope" is equally far-fetched and unfair.
8.30.2005 5:41pm
Moral Hazard (mail):
I don't understand the politics of this ad. While I personally oppose any sort of prayer in school every poll I've seen on the subject suggests a large majority of the population supports it.
8.30.2005 6:12pm
What strikes me as odd about this ad is that, last time I checked, a large majority of Americans *favors* allowing prayer at things like graduation ceremonies. So it seems to me that the main function of the ad is to scare up more contributions from current supporters, not to convince a majority of Americans that Roberts is bad.
8.30.2005 6:13pm
Sammy Finkelman (mail):
Doesn't everybody here agree that the parody anti-Roberts ads on Rush Limbaugh's show supposedly from George Soros, are fairer and more balanced than the genuine ones? The most recent one made an argument from the fact taht John Roberts crossed out thw words "Civil War" once and suibstuituted "War Between the States"

That at least did not misrepresent any court case.
8.30.2005 6:19pm
SeanT (www):
Nick Carter -- You actually make a very interesting point about their choice to single out Mormons, as opposed to just Christian prayers (or even Catholic prayers in Boston?). I think there's about 100% chance that they're pandering to the sense among many who are unfamiliar that Mormonism is a "weird" religion.
8.30.2005 6:25pm
I'm still looking for that 'Wall of Separation of Church and State' in a founding document...can someone help me?
8.30.2005 6:27pm
magoo (mail):
Todd -- Penumbra 75, section 17, clause 2
8.30.2005 6:29pm
Thanks Magoo - I must've missed that one!! ;-)
8.30.2005 6:31pm
JeffH (mail):
Several ill-informed statements, some embarassingly so:

1. "Elections have consequences. Clinton won in '92 (without a popular majority, gasp!), so he got to nominate Ginsburg and Breyer."

Oh, really? Consider the following quote from Senator Hatch's autobiography:

"President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press. [. . .] Clinton asked for my reaction.

I told him that confirmation would not be easy. [. . .] I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg.

I indicated I thought they would be confirmed easily." excerpt from Hatch's book here

Did Bush have a similar conversation w/Leahy?

2. Since Roberts (a) won't make available large amounts of his record &(b) has indicated he will not answer hypotheticals, we have to work with what we have — keeping in mind that confirmation is not a right, and all doubts should be resolved against a lifetime appointment.

In that vein, consider:

"The argument of the last poster is like me saying, "So-and-so supported the decision in Roe v. Wade. Do you believe in an America where evangelical Christian doctors are forced to perform abortions in military hospitals?" (That is, if the SC had decided that abortions must receive taxpayer funding [[see Harris v. McRae]]). The "slippery slope" is equally far-fetched and unfair."

Conservatives with views seemingly less extreme than Roberts believe that (a) public school prayer should be made constitutional, either by crazed interpretation against the text of the Constitution or by amendment, and (b) that localities ought to have the ability to control their curriculum.

So why is it extreme to imagine localities in which the majority religion was reflected in the local school? Even w/O'Connor's moderation controlling the Supreme Court, we've seen the advance of "intelligent design."
8.30.2005 6:36pm
Brian G (mail) (www):
That is hilarous, and pathetically dumb. The Robert Bork's America nonsense worked because the liberal media controlled the story. Not anymore. Besides, school prayer is a popular issue in this country, which I know is shoking to liberals who don't know anyone who voted for Bush.
8.30.2005 6:40pm
gab (mail):
1. Can someone post an example of a "non-sectarian" prayer?

2. If a graduation is a non-coercive situation, can the graduate just pick up his diploma and leave when he wishes?
8.30.2005 6:44pm
On your point #1 - what of it? What were the vote results of Ruth Ginsburg (ALCU bulldog), 88-6 or something??

Point #2 - until the Emerson decision in 1947, school prayer wasn't a "crazed interpretation", but reality. Was the country in the abyss before 1947? And what exactly IS wrong with majority rule with localities controlling the ciriculum?

"Intelligent Design" requires no more faith than does the THEORY of Evolution.
8.30.2005 6:53pm
Scriptfox (mail):
1. Can someone post an example of a "non-sectarian" prayer?

Depends on how far you define "sects." There are different religions, and different "sects" within a religion. In today's term, "non-sectarian" would probably mean "Deist"- one which acknowledges God, thanks Him, etc, without ever mentioning any particular attributes or beliefs (Or even sex?) that is specific to Him. In some areas, it might extend to "Non-sectarian Christian", where you could mention Jesus Christ in the prayer, but that'd be about it.

2. If a graduation is a non-coercive situation, can the graduate just pick up his diploma and leave when he wishes?

If not, then only because the ceremony would be interrupted. So far as I know, the ceremony is exactly that. You earn the degree and get the diploma no matter if you can attend the actual "ceremony." In fact, as I recall, some if not most ceremonies just give the students a blank folder, and they get their Diploma from the offices later.

In the larger schools, they don't even have a graduation ceremony that calls up the individual students by name because of time considerations.
8.30.2005 6:58pm
1. "Oh God, please be with these skulls full of mush. We beseach thee to look after them and keep them alive/sober for 4 years of college"...
Non-sectarian is the spineless appeal to "GOD" - something in excess of 90% of the US believe in Him as a nameless, feel-good Grandfather figure. Sectarian would be an appeal to His Son, Jesus Christ who saves us from sin and death through the cross, just as an example.
2. Yes. Or, ask for it to be mailed and don't show up - I'm sure these days there are VERY few schools that would have a problem accomodating an atheist.
8.30.2005 7:01pm
RogerA (mail):
Has the debate come to this? Peurile, jejune and establishes Bill Buckley's famously said aphorism about being ruled by the first 100 names of the Boston phone book. The "slippery slope" argument establishes only fascism and nothing more. Life is nothing more than slippery slopes.
8.30.2005 7:04pm
gab (mail):
1. So there's really no such thing as non-sectarian?

2. Once you're there (assuming you don't know they're going to read a prayer) can you just pick up your diploma once they start reading the prayer? Say you just interrupt the prayer and walk up there and get it?
8.30.2005 7:05pm
David Berke:

Intelligent Design requires belief in the existence of God, or something sufficiently close that the difference is irrelevant. Further, as it cannot be tested in any meaningful scientific fashion, it is purely an article of faith.

The Theory of Evolution can easily be accepted as the best answer presently available based upon scientific evidence without accepting that it is definitely right and can never be proven wrong.

Government mandated recitation of religious material from a particular religion does not strike you as tending to establish a religion? As effectively imposing such religion upon those who are present?
8.30.2005 7:06pm
Thank you for your reason.

I assumed as an article of faith, too, the "Big Bang" - for where did that cloud of gas come from that developed its own gravity, rubbed togeter and exploded? And that from primordial ooze came mankind a trillion years later. We have fossil records of every living thing in antiquity - but NO record/proof transitional beings. Macro-evelution is nearly disproven. It's own high school textbook examples disproves it. Remember the moths is Britian that changed color to match their resident trees? The light moths were eaten by birds - they didn't turn into cats! I challenge anyone to show me where one animal species hase EVER begat another species...or even historical proof that it's happened. (I was a Biology major long ago until I applied scientific reason to it's own 'truths')

I would merely ask that schools supply both sides of a debate on the Creation. Does it harm the poor little ones to realize not everyone thinks the same way on something utterly unprovable?
8.30.2005 7:23pm
Guest Again:
"Can someone post an example of a "non-sectarian" prayer?"

God save the United States and this Honorable Court.
8.30.2005 7:26pm
I think you're all a bit too eager to turn this into a smear. Is anybody really going to surmise that Roberts wants Christians reciting Muslim prayers? That's not the point. The point is that Roberts shows disdain for religious minorities when he says they can simply stay home from their graduations. The fact that the prayer in Weissman was non-denominational is no consolation to an atheist. Of course, the ad doesn't mention atheists, because most people hate atheists. Rather, it takes Roberts' position to its logical conclusion. That's about as substantive as an ad is going to get.
8.30.2005 7:34pm
Re question 2: As was pointed out earlier, most HS graduations don't involve a real diploma anyway. So could you get up and leave? Sure. You could probably stand up and shout over the prayer as well, if you like. And because that'd be rude you'd probably be scorned (and rightly so) and possibly hassled but there's no way that it'd prevent you from ultimately getting your diploma.
8.30.2005 7:39pm
SimonD (mail):
JeffH - whether Clinton got his first pick or not is of no relevance at all. He got Justices that he and his supporters have been very pleased with over the years - one of whom was the former counsel to the ACLU for crying out loud! Pres. Bush may or may not have had a similar conversation with Sen. Leahy, but one thing's for sure: Leahy didn't ask whether he had considered Sam Alito or Priscilla Owens, who occupy about the same place on the right wing radar as Breyer and Ginsburg occupied on the left's.
8.30.2005 8:05pm
David Berke:

I must note at the outset that you did not address my second point regarding constitutional problems with allowing school prayer.

Your statement regarding the "Big Bang" is well taken, as it reflects a concern of my own. First causes are tricky. Similarly, as any rational person would admit, the Theory of Evolution could always be overruled by later evidence. However, these theories are better supported by the available evidence than any other theory at this time. Accordingly, a provisional belief based upon the evidence is somewhat different than taking it on faith. To merely recognize and/or assert potential issues with a theory does not prove or even support a separate unrelated theory in any meaningful fashion.

For what it's worth; We have fossil records of many things, some of which are present today, some of which are not, some of which were apparently present in the past, some of which were apparently not. If there are species which once existed and do not now, and species which once did not exist, but do now, evolution is a pretty good way of resolving the issue.

You have advanced the expected question for intelligent design: "I would merely ask that schools supply both sides of a debate on the Creation." This is improperly phrased because it assumes that which it does not demonstrate. What you really mean is that you would have the schools offer the Theory of Evolution as well as teaching traditional Judeo-Christian understandings of the development of life on this planet. I respond as follows:

1. Why do we need the government to teach religious beliefs? Asking the government to impose religion is a risky proposition at best. This presents a classic slippery slope problem; where does it stop? Should the government also teach alternative religious beliefs as to math, geology, biology or physics? Government? (Please do not advance the disagreement that religion does not speak to these issues, as a sufficiently detailed search of religious doctrines will yield contradictions) If you are concerned with an inappropriate emphasis on secularism, send your child to the Sunday School of your choosing.

2. How is the government to choose between religious beliefs? Why should they teach the Judeo-Christian belief that deals with the development of life on this planet, but not others? I'm given to understand that the Scientologists have some pretty interesting beliefs on this subject. I'm sure that Buddhists, Taoists, and other Eastern religions have a very different understanding as well. In fact, we should probably accommodate all competing belief systems which are different. There were some interesting theories surrounding the beginning of western civilization regarding the interaction of the elements; perhaps we should teach those as well.

3. There is no debate. Debate requires that both parties be dealing with the same subject matter. Intelligent Design proponents are advancing a religious belief based upon faith. Evolution proponents are advancing a belief based upon existing scientific evidence, such as it is. There is no common ground; the two argue past each other, passing like ships in the night. Because they are not discussing the same subject matter, there is no difference of opinion to be explained to students.
8.30.2005 9:00pm
It is a bit silly to think that a prayer which mentions God is "non-sectarian". It covers Christianity, Islam, and Judaism, but it doesn't cover the various Eastern and animistic religions.

And of course, another irony here is that religious conservatives are fond of claiming that atheism is a religion. If one accepts their definition then the act of invoking "God" is itself an open repudiation of one of the world's largest religions.
8.30.2005 9:06pm
Michelle Dulak Thomson (mail):

I think you're all a bit too eager to turn this into a smear. Is anybody really going to surmise that Roberts wants Christians reciting Muslim prayers? That's not the point. [ . . .] [the ad] takes Roberts' position to its logical conclusion. That's about as substantive as an ad is going to get.

Except that there's no way to read those examples as logically following from Roberts' position. The case in question involved a graduation speaker reciting a prayer. The hypothetical examples in the ad all involve the students reciting prayers. This seems to me a hell of a big difference.
8.30.2005 9:44pm
Dwilkers (mail):
LOL. That is one horribly done ad.

Unless the idea is to raise money for whoever runs 'stopjohnroberts-dot-com'...
8.30.2005 10:02pm
Carl Sanders (mail):
I'm surprised that people actually come out of the woodwork to defend this ad. As Orin mentions, the reason that Roberts et al. thought that ceremonial prayer was constitutional was that it was NOT coercive. Yet we get people claiming the end of this slope is mandatory prayers? Could some please explain what logical steps could possibly take Roberts from where he was in that brief to the second sentence of the ad where children are being forced to read prayers from other faiths? Since we are on Volokh, I'll give a little extra credit to slippery slope people. Still, Roberts' position looks like flat ground to me.
8.30.2005 11:18pm
Zed Pobre (mail) (www):

The threat comes from the combination of the legal acceptance of state-sponsored clerics at official ceremonies (which Roberts endorsed in Lee vs. Weisman, the idiocy of declaring the resulting prayer 'non-sectarian' notwithstanding) with local attitudes about their majority religion, leading to persecution of minority non-believers. This already happens at the Air Force academy, where you are at a significant risk of harassment if you aren't an evangelical Christian.

The slope goes like this:

Clerics are allowed to perform 'non-sectarian' ceremonies at official events.

Clerics are allowed to perform 'non-sectarian' ceremonies on a regular basis.

Students are invited to participate 'voluntarily' in these 'non-sectarian' ceremonies.

Using the 'under God' part of the Pledge of Allegiance, already forced on many schoolchildren, as a wedge, religious discussion of that is brought into the classroom on a daily basis, despite the fact that the phrase wasn't even part of the original Pledge.

The veil of 'non-sectarian' gets weaker and weaker as religious members push the boundaries. Eventually it evaporates, which doesn't take too long since there wasn't much there to begin with (addressing a prayer specifically to 'God' is already sectarian, excluding goddess-based religions and athiests). Eventually, someone attempts to bring in a fringe cleric to make a point, gets shot down, and the majority religion is made practically, if unofficially, official.

Students are harassed by teachers and other students for not participating in the 'Pledge of Allegiance' discussions. Someone sues the school over this, and loses.

For all practical purposes, children are now forced to participate in prayers even if they don't belong to the faith in question, and other schools take that legal victory as a springboard to make it more and more explicitly required, always stopping just shy of it being officially endorsed.

You cannot endorse bringing clerics into schools by pretending that they are 'nonsectarian'. That way lies madness. I guarantee you that if it hadn't been a Jewish Rabbi, but a Wiccan Priestess, invited to that ceremony, there would have been hell to pay, no matter how generic the resulting prayer to the Goddess was, and I don't believe for a minute that Roberts would have endorsed it.
8.31.2005 12:34am
In addition to the fact that some of object to being forced to tolerate prayer on our behalf, when we have no belief in that path, almost every high school I have been around requires attendance to the graduation ceremony to receive your diploma, excepting only medical emergency. If you are forced to be there by that state institution, then that state institution shouldn't be advancing any form of religious belief upon the individuals forced to be there.
8.31.2005 11:51am
Zed -
You left out the final step where "graduation" is renamed "confirmation" and the lunch lady dispenses the incarnated blood and body of Jesus Christ alongside rubbery meatloaf and soggy succotash.

flaime -
The fact of the matter is that in this case, attendance was not mandatory. That's been my experience as well, so your mileage may vary.
8.31.2005 12:36pm
It saddens me to see the direction of this thread. More and more, hard-heartedness seems to pervade the discussion to the point where God is being put in quotes and the invocation of his name is seen as a negative being forced on the poor little ones.

You with that attitude need to re-examine our founding documents and the spirit in which they were offered. I'm not Bible-thumping, as I was once an agnositic, "science-is-God-you-can't-prove it" (blah blah blah) young moron, and that doesn't persuade the hard-hearted.

Our founders were many things, but faithful Christians they were first and foremost. They realized we were endowned by our Creator - not some Deist clockmaker, the only Deists among them were Franklin and Jefferson - our rights and priveliges are not gifts of Man/Government, because then law could take them away. No, these are inalienable.

Read the Mayflower Compact, the Declaration, etc. You'd be shocked that they DARE say such words in public, let alone in legal documents. Like it or not, this wasn't even a country founded on 'Judeo-Christian' beliefs, but on strictly Christian beliefs with TOLERATION for minority views. Only since 1947 has this been deviated from...and the minority view is now imposed to avoid "offending".

The establishment clause reads "CONGRESS SHALL MAKE NO LAW respecting an establishment of religion". The slippery (and very steep!) slope here is - how do you extrapolate that the reading of prayer in the public, and even yes, government-run school is akin to, specifically, Congress passing a law establishing, for example "Baptist Christianity is now the official religion of the USA"? That's how it reads people. Examine yourselves - is it the written word here you don't agree with, or just an abiding hatred of the idea of religion in general?
8.31.2005 12:50pm

You forgot Thomas Paine, who wrote extensively attacking religion. The extent of George Washington's religious belief is also questionable, as I believe it is with others of our Founding Fathers. Many of them invoked religious ideas for the same reason politicians today do: most voters like it.

I'd ask you this: What clearer method could there be of establishing religion in America than infusing it in our public schools?

The 1st amendment prohibits establishment of religion. Not a particular religion. It doesn't say what you say it says. Why do you get so pissed off at the idea that you can't force me to sit around while you pray? You can pray at home if you want to. You can pray at school if you want to. You can pray any blasted time you like. You just can't use the government to set aside my time, or my kids' school time, or anybody else's time and make us sit around and watch you pray.

And if you're a Supreme Court justice, you can't respond by telling me I can stay home from my own graduation ceremony. It's arrogant and insulting. With all due respect, get over yourself.
9.1.2005 8:13pm